maybe the 4th best conservative college blog in America in 2008

Saturday Link Dump

We have a lot of links to a lot of good articles. We’d like to have incorporated them all into different posts, but it just isn’t going to happen. That said, we didn’t just want to simply forget about them, so we figured we’d include them in a really, really huge Saturday link post. They are all worth clicking through and reading.

(note: please excuse the oversight if we forgot to give you a “hat tip” for recommending a particular article. email us and we’ll take care of it.)

As far as I’m concerned, Gould’s The Median Isn’t the Message is the wisest, most humane thing ever written about cancer and statistics. It is the antidote both to those who say that, “the statistics don’t matter,” and to those who have the unfortunate habit of pronouncing death sentences on patients who face a difficult prognosis. Anyone who researches the medical literature will confront the statistics for their disease. Anyone who reads this will be armed with reason and with hope.

(hat tip: S. Lybbert)

If you have tips, questions, comments, suggestions, or requests for subscription only articles, email us at lybberty@gmail.com.

Comments

Also, oil prices are not the only thing being exacerbated by ethanol. I’m sure the Fed is delighted that the government and corn farmers have teamed up to help boost inflation. The only thing more American than apple pie is an agricultural subsidy. Oddly, there is also nothing more French….

“Professor Daniel Farber has noted some of the methodological problems with originalism. One problem is “whether we can determine the original intent with any confidence. Various methodological problems may make it difficult to do so, and of course, if we cannot determine original intent, we cannot make it the basis for interpretation.” Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1087 (1989). One problem, according to Farber, is that “the framers of various provisions often failed to discuss the issue in which we are interested today.” Id. Another problem is whether the documentary evidence is reliable. “There have been recurring charges that Madison significantly altered his notes at a later date, perhaps to reflect his own changing views of the meaning of the Constitution.” Id. at 1088; see also James Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 33-34 (1986) (arguing that Madison’s notes provide an abbreviated account of the proceedings leading to the Constitution).

Professor Farber also asks whether the Framers themselves expected that their own intentions would control subsequent interpretations of the Constitution; whether the Framers anticipated that courts would defend human rights beyond the rights expressly listed in the Bill of Rights; notes that one difficulty in implementing originalism is determining the level of intent; and notes the argument that originalism is too static and thereby disregards the need to keep the Constitution up to date with contemporary and changing times. Farber, supra note 42, at 1089-97; see also id. at 1097-1106 (discussing the normative arguments for originalism).” – 4 Temp. POl. & Civ. Rts. L. Rev. 229.

Even the supposed “originalists” of this Court fail to truly apply originalism in their current decisions. Instead, their actual judicial methodology can be better explained as “I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor….”

Justice Scalia, like virtually all judges, does not apply a rigorous originalist approach to cases he actually decides. He has invalidated political decisions without clear evidence that those decisions were inconsistent with original understandings. 98 For example, numerous commentators have pointed out that Scalia’s takings jurisprudence is completely inconsistent with the original understanding that only a physical imposition constituted a constitutional violation. 99 Additionally, his votes to overturn flag burning laws, hate speech laws, and affirmative action [*428] programs cannot be reconciled with a strictly originalist approach to constitutional interpretation. 100

More importantly, contrary to what Justice Scalia argued in his recent book, he does take into account changed circumstances when he engages in Constitutional interpretation. For example, the issue in Minnesota v. Dickerson, 101 was whether the Fourth Amendment allows the seizure of contraband detected by a police officer during a protective search permissible under Terry v. Ohio. 102 The Court held that the police officer violated the ban on “unreasonable searches and seizures” by “”squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket’ – a pocket which the officer already knew contained no weapon.” 103

Justice Scalia wrote a concurring opinion, the beginning of which sounds very much like Part I of Professor Machen’s article. Scalia began by saying that “I take it to be a fundamental principle of constitutional adjudication that the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification.” 104 Therefore, according to Scalia, the right to be free from “unreasonable searches and seizures,” must be construed in light of what those words meant when the Constitution was adopted. 105 Scalia then suggested that he was not sure whether the Terry rule, allowing a person to be frisked prior to arrest to insure he has no hidden weapons, was a proper interpretation of the Fourth Amendment. He doubted that “the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity….” 106 But Scalia went on to articulate an approach to this case strikingly similar to the one advocated by Professor Machen in the second part of [*429] his article. Justice Scalia said that, “even if a “frisk’ prior to arrest would have been considered impermissible in 1791… perhaps it is only since that time that concealed weapons capable of harming the interrogator quickly… have become common – which might alter the judgment of what is “reasonable’ under the original standard.” 107 In other words, even if the Framers had specifically considered the validity of protective frisks before arrest, and even if they had decided that such frisks were invalid, the identical issue may be decided differently by a later generation because of changes that have taken place since the Constitution was adopted. If, according to Scalia, the interpretation of the word “unreasonable” to a given set of facts can change, why can’t the meaning of phrases like “cruel and unusual punishments,” “equal protection,” and “due process,” also change? In his Dickerson concurrence, Justice Scalia employed the same “semantic originalism” advocated by Ronald Dworkin today and envisioned by Professor Machen almost one hundred years ago.

The fact that Justice Scalia does not actually apply the originalist approach he advocates in his academic writings to his judicial decisions does not by itself mean that such a project is impossible or wrong headed, just that Scalia is not committed to it. The question is, does anyone consistently apply an approach to constitutional interpretation where judges ignore changed circumstances and invalidate acts of the political branches only if there is strong evidence that the Framers of the Constitution intended to prohibit the specific practice at issue? This kind of interpretive regime would sharply limit the judicial role with regard to most constitutional provisions and lead to a system of strong judicial deference. Cass Sunstein, in his recent review of Justice Scalia’s book, outlined the likely results of this kind of constitutional interpretation. 108 According to Sunstein, Scalia’s project, if carried out consistently, could lead to the overruling of such cases as Brown v. Board of Education, 109 and New York Times v. Sullivan. 110 Furthermore, it could mean that sex discrimination would not be constitutionally objectionable; that the Establishment Clause would not apply to the states; that the Equal Protection Clause would not apply at all to the federal [*430] government; and that “most of modern constitutional law, now taken as constitutive of the American constitutional tradition by Americans and non-Americans alike… is illegitimate and fatally undemocratic.” 111